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(2L, Volume 80)
Facts & Objective
In October of 2021, the Supreme Court of Canada rendered a 5-4 decision in Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43 (CanLII) (Ward). This case arose after Mike Ward, a professional comedian, mocked Jeremy Gabriel, a boy with a disability, in a stand-up comedy routine.
Gabriel filed a complaint with the Commission des droits de la personne et des droits de la jeunesse, a government agency. This agency, in turn, argued that Ward infringed Gabriel’s full and equal recognition of his right to the safeguard of his dignity, contrary to ss. 4 and 10 of the Charter of Human Rights and Freedoms, CQLR c C-12 (Quebec Charter). Ward raised a defence based on freedom of expression, protected by s. 3 of the Quebec Charter.
The Supreme Court’s five-judge majority framed the issue in terms of how to approach a discrimination claim in a context involving freedom of expression. However, this post argues that the true divergence between the majority and dissent is rooted in two related factors: (1) fundamentally different perspectives on how and when freedom of expression should be limited in a free and democratic society, and (2) an inability to reconcile liberty and equality (i.e., an inability to accommodate unfettered expression while preventing harm to others).
As will be explored below, the majority relied on Saskatchewan (Human Rights Commission) v Whatcott, 2013 SCC 11 (CanLII) (Whatcott) to propose a liberty-oriented holding and frame their analysis in terms of the benefits of freedom of expression to society. Alternatively, the dissent drew on the s. 15 jurisprudence to propose an equality-oriented solution and focus their analysis on the harms of freedom of expression at the individual level. This difference leads the majority and dissent to advocate for relatively broad and narrow interpretations of freedom of expression, respectively. Understanding these opposing views provides insight into how the Supreme Court is currently thinking about freedom of expression, a Charter right with a history of interpretation that is pulled back and forth between liberty and equality.
Background on the Quebec Charter & Relevant Case Law
Gabriel’s discrimination claim against Ward was based in s. 10 of the Quebec Charter. Prior to Ward, the framework for a discrimination claim under s. 10 was set out in Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 (CanLII) (Bombardier). This claim requires establishing three elements: (1) a distinction, (2) based on a prohibited ground (“handicap” is a prohibited ground under s. 10), and (3) that nullifies or impairs the equal recognition and exercise of a separate Quebec Charter right. To establish this third element, Gabriel argued that Ward nullified and impaired his s. 4 right “to the safeguard of his dignity, honour and reputation” (Ward at para 16). If these three factors are established, the burden of justifying the discrimination falls on the defendant. Ward’s defence relied on s. 3, which protects one’s fundamental freedoms, including freedom of expression.
Before Ward, Calego International inc. c. Commission des droits de la personne et des droits de la jeunesse, 2013 QCCA 924 (CanLII) (Calego) was the authority over discrimination claims in the context of freedom of expression. Calego established that speech would violate the s. 10 guarantee of equality in the exercise of one’s s. 4 right if “it constitutes such a contemptuous affront to the individual’s identity that it would have serious consequences for the reasonable person in that individual’s circumstances. The reasonable person would be aware of the importance of freedom of expression in a democratic society, and would therefore be expected to tolerate hurtful speech, even related to protected grounds, that does not rise to a high level of gravity” (Ward at para 163). The Calego standard is a modified objective test, whereby it must account for the plaintiff’s characteristics and the context in which the remarks were made.
Analysis of Majority: Liberty & the Benefits of Speech to Society
Writing for the majority, Wagner CJ and Côté J, joined by Moldaver, Brown and Rowe JJ, rejected Gabriel’s claim at the second step of the Bombardier test and reasoned that the discrimination was not made on a prohibited ground. The majority explained that the Tribunal made a finding of fact that Gabriel was chosen by Ward because he was a public figure, not due to his disability. Although the judgment could have ended here, they carried on at length to explain that even if there had been differential treatment based on a prohibited ground, Gabriel’s claim would have failed.
Prior to conducting their analysis, the majority opined on freedom of expression and framed it as a positive force to society that must only be limited in unique and extraordinary circumstances. The majority explained that freedom of expression flows from the concept of human dignity and that this dignity would be meaningless if some people were silenced because of their opinions (paras 53, 59). They went on to say that the purpose of protecting freedom of expression under the Quebec Charter was to “ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream” (para 59). Stemming from this idea, and reiterated throughout the judgment, is the principle from Whatcott that freedom of expression cannot be limited to confer protection from emotional harm; the benefits of freedom of expression at large outweigh the offence to an individual.
The majority further relied on Whatcott to propose only two situations where limits on freedom of expression are justified:
“…where, in a given context, there are serious reasons to fear harm that is sufficiently specific and cannot be prevented by the discernment and critical judgment of the audience… [and] where it is used to disseminate expression that, even if it does not fully meet the definition of hatred set out in Whatcott, nonetheless forcers certain persons ‘to argue for their basic humanity or social standing, as a precondition to participating in the deliberative aspects of our democracy’” (Whatcott at paras 129–35 and 75, quoted in Ward at paras 61 and 63)
Wagner CJ and Côté J further argued that freedom of expression does not begin until it gives rise to a duty to tolerate what other people say (para 60). Essentially, the majority presented the classical liberal view of freedom of expression that society is best off with a marketplace of ideas, no matter how repugnant or repulsive.
In their analysis, the majority made two distinct analytical moves that were seemingly shaped by their perception of freedom of expression. First, they slightly modified the third element of the Bombardier test. Now, to establish a discrimination claim, the plaintiff must prove on a balance of probabilities: (1) a distinction, exclusion or preference, (2) based on a prohibited ground, (3) “that has the effect of nullifying or impairing the equal recognition or exercise of a right whose protection is called for in light of s. 9.1 in the context in which it is invoked” (para 44).
Section 9.1 states, “In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, State laicity, public order and the general well-being of the citizens of Québec. In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.” The majority’s adjustment to the third element of the test enabled them to look beyond the discrimination at-hand and instead to “democratic values” and “the general well-being of the citizens of Québec.” In other words, it introduces a balancing exercise that enables a court to weigh the harmful effects of discrimination against the benefits of freedom of expression to society.
Second, the majority rejected the Calego test and introduced a novel two-step framework to analyze the third element of discrimination in the context of a conflict between the right to the safeguard of dignity and freedom of expression. Calego included a step whereby the court considered the perception of a reasonable person targeted by the same words. The majority argued that this approach “results in a shift toward protecting a right not to be offended, which has no place in a democratic society” (para 82). It further explained that “the applicable test must not be focused either on the repugnant or offensive nature of the expression or on the emotional harm caused to the person. Otherwise, it would amount to censoring expression because of its content or its impact on a person, regardless of its discriminatory effects” (para 82). Rather, the analysis must be focused on the likely discriminatory effects of the expression, not on the emotional harm suffered by the person alleging discrimination.
Analysis of Dissent: Equality & the Harms of Speech on Individuals
Written by Abella and Kasirer JJ. and joined by Martin and Karakatsanis JJ., the dissent opened by clearly distinguishing themselves from the majority. They framed the issue entirely differently, which provides insight into their perspective on freedom of expression: “whether the child with disabilities lost protection from discrimination and the right to be free from public humiliation and bullying just because he is well known” (para 115). They explained that there is no basis for tolerating words that have humiliating or dehumanizing effects on children with disabilities, and immediately established that emotional harm can, and indeed should, be a limit on freedom of expression (para 116). Further, the dissent rejected the majority’s reliance on Whatcott and denounced them for seemingly making hate speech the threshold at which discriminatory comments can be actionable.
The dissent applied the standards as set out in Bombardier and Calego, and argued that Ward’s speech satisfied both tests. They found a distinction based on Gabriel’s disability that impaired his s. 4 right. And, a reasonable child in Gabriel’s circumstances would have suffered significant harm due to Ward’s speech.
Moreover, they specifically indicated that the Bombardier analysis is based on the impact on the complainant, not the intention of the defendant (para 134). Their approach is shaped by the idea of substantive equality from the s. 15 jurisprudence and relies on Withler v. Canada (Attorney General), 2011 SCC 12 (CanLII) and Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC). They argued that “there is no greater inequality than the equal treatment of unequals” so, to avoid such inequity, “the main consideration” for courts hearing discrimination claims should be “the impact . . . on the individual . . . concerned” (para 149).
As such, there will be a distinction based on a prohibited ground whenever a claimant “carries a burden that others do not, by reason of [an enumerated] personal characteristic” (para 149). As a result, it did not matter whether Ward targeted Gabriel based on his disability or his fame. For the dissent, it is all about impact, and Gabriel was impacted differently by Ward’s jokes due to his disability.
Liberty vs. Equality: An Eternal and Continuing Debate at the Supreme Court of Canada
Freedom of expression is a slippery, elusive right. Deeply rooted in philosophy, the bounds of freedom of expression are constantly developing. This fact becomes readily apparent from a cursory review of the section 2(b) jurisprudence.
In 1990, the Supreme Court of Canada upheld the hate speech provisions of the Criminal Code in a case involving anti-Semitism (R v. Keegstra, 1990 CanLII 24 (SCC) (Keegstra)). Yet, two years later, the Supreme Court struck down the criminalization of spreading false news in R v. Zundel, 1992 CanLII 75 (SCC) – a case involving Holocaust denial. Moving to 1998, the court upheld the constitutionality of the Criminal Code offence of defamatory libel in R v. Lucas, 1998 CanLII 815 (SCC), after a man publicly accused a police officer of child sexual abuse. While, in R v. Sharpe, 2001 SCC 2 (CanLII), the Supreme Court created an exception allowing for self-created, privately held materials pertaining to child pornography. And, most recently in Whatcott, a case challenging the constitutionality of Saskatchewan’s anti-hate human rights legislation, the Supreme Court revisited and substantially narrowed the scope of their ruling in Keegstra.
Indeed, there are nuances and distinguishing facts between these cases. However, to say the least, the trajectory of section 2(b) of the Charter is more prone to change than other areas of law because it represents a battleground between two values that are fundamental to Canadian democracy: liberty and equality. Tracing this history to the present day begs the question: where does the current bench stand on the limits of freedom of expression?
Ward provides insight into this inquiry. The court is clearly split. Wagner CJ, and Côté, Moldaver, Brown and Rowe JJ seem to focus their analyses on how limiting freedom of expression will impact society-at-large. They are clearly committed to a society underpinned by a marketplace of ideas, where tolerating offensive speech is integral to a functioning democracy. As a result, they seemingly only support limits to freedom of expression if the impugned expression has harm effects on society, such as the perpetuation of discrimination or hate. Alternatively, Abella, Kasirer, Martin and Karakatsanis JJ seemed to be more concerned about the impacts of freedom of expression on individuals. They are motivated by equality rights, and ensuring that all Canadians can pursue a dignified life.
At the broadest level, this case is about a clash between liberty and equality. However, neither decision directly acknowledges that these values might be in conflict, and that there may be a necessary trade-off between the two. Philosophers have struggled with this question for centuries. The basic premise of the debate stipulates that (a) ensuring liberty requires that people have the freedom to conduct themselves differently from one another, which will necessarily produce unequal outcomes, and (b) ensuring equality requires limiting people’s liberty such that everyone obtains equal outcomes or receives equal treatment. Some liberty, therefore, must be surrendered to obtain more equality, and vice versa. As a result, in a conflict between liberty and equality, the analysis must necessarily be a balancing exercise. Evidently, the majority and dissent differ on where the weight should be placed. These perspectives will undoubtedly prove influential when s. 2(b) of the Charter returns to the SCC.
